Gujarat High Court
Chitra Publicity Co. Thru. Bakulesh ... vs Satish Yashwantrav Chikhlikar on 14 June, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/6408/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6408 of 2019
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CHITRA PUBLICITY CO. THRU. BAKULESH KANTILAL MEHTA
Versus
SATISH YASHWANTRAV CHIKHLIKAR
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Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE with MR JF MEHTA(461) for the
Petitioner(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,4,5,7
MR ANSHIN H DESAI, SENIOR ADVOCATE with MR SHRINEEL M
SHAH(9374) for the Respondent(s) No. 2,3,6
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 14/06/2019
ORAL ORDER
1. Present petition under Article 227 of the Constitution of India is filed by the original defendant No.3 for seeking following reliefs:-
"(a) Your Lordships will be pleased to admit this petition.
(b) Your Lordships will be pleased to grant an ad interim injunction restraining the respondents from executing and implementing the judgment and decree passed in Sp.C.S. No.569 of 2011 passed by the Hon'ble third additional senior civil court at Ahmedabad (Rural).
(c) Your Lordships will be pleased to grant an ex-parte ad interim injunction restraining the respondents from executing and implementing the judgment and decree passed in Sp.C.S. No.569 of 2011 passed by the Hon'ble third additional senior civil court at Ahmedabad (Rural).
(d) Your Lordships will be pleased to quash and set aside the order passed by the Hon'ble District Court at Ahmedabad (Rural) in RCA no.22 of2019 refusing to grant an ex-parte ad interim relief to the petitioner below injunction application.
(e) Your Lordships will be pleased to allow the petition.
(f) Your Lordships will be pleased to dispensed with the certified copy of the order passed below injunction application by the Hon'ble District Court at Ahmedabad (Rural) in RCS no.22 of Page 1 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER 2019.
(g) ........."
2. The case of the petitioner is that the respondent Nos.1 to 6 are members of Akshar Co-operative Housing Society Ltd. and their case further is that the respondent No.7 has illegally sold terrace right to the petitioner suggesting that respondent Nos.1 to 6 are having common terrace rights, over which the petitioner has placed advertisement board in a dangerous condition, which is likely to fall down and which may create damage to the property as well as to the person. Though the respondent Nos.1 to 6 have preferred complaint before the respondent No.8, the petitioner continued to place advertisement board, as a result of this. as there is no alternative, the respondent Nos.1 to 6 are required to file civil suit, which is numbered as Special Civil Suit No.569 of 2011. It is further the case of the petitioner that the said civil suit came to be decided on 31.12.2018, which was made subject matter of Regular Civil Appeal No.22 of 2019. The petitioner has asserted in the petition that the petitioner has applied for certified copy on 1.3.2019, which was made available only on 27.3.2019. So much so that the decree which is otherwise required to be attached with the appeal was also not made available rather prepared till 27.3.2019. As soon as the decree was drawn in the evening hours on 27.3.2019, the same was made available on 28.3.2019 and immediately thereafter, on the very same day, i.e. on 28.3.2019, Regular Civil Appeal was filed along with injunction application. It is the further case of the petitioner that by virtue of the impugned order dated 31.12.2018, 90 days' period for removal of hoarding got over on 30.3.2019, but learned District Judge on injunction application simply issued show cause notice made it returnable on 5.4.2019, i.e. after the period was getting over of 90 days. Under this situation, since learned Judge below has not granted ad-interim relief, which is likely to make the appeal infructuous, the petitioner is constrained to approach this Court for urgent protection.Page 2 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER
3. Learned senior advocate Mr. Mihir Joshi at the relevant time on 29.3.2019 requested for urgent circulation and the same was granted looking to the urgency posed before the Court and notice was made returnable with interim protection. With this background, after service of notice, the respondents have appeared through their respective counsel and the matter is taken up for hearing.
4. Pursuant to the notice which has been made to dispose of the Special Civil Application at the admission stage itself, the Court has taken up the hearing of the Special Civil Application, in which learned senior advocate Mr. Mehul S. Shah now appearing with learned advocate Mr. J.F. Mehta has submitted that looking to the urgency of the situation, the Court has rightly protected the interest of the petitioner, particularly when 90 days' period, as mentioned in the order dated 31.12.2018, was to elapse on 30.3.2019. It has been submitted that chronology of events which took place before the Court has practically apprehended the petitioner that if no protection is granted, an irreversible situation would be created and the appeal which has been filed would become infructuous. It has been submitted that the original order is dated 31.12.2018 and as soon as the petitioner came to know about this order, the petitioner applied for certified copy on 1.3.2019 as the petitioner was communicated in the last week preceding the aforesaid date. On 1.3.2019, decree was not drawn and for the first time, decree was drawn on 27.3.2019 and as soon as on 28.3.2019, the decree came to be received, with immediate effect, a substantial regular appeal came to be filed on that very day, i.e. on 28.3.2019, along with the injunction application. By referring to page 48 of the petition compilation, Mr. Shah has pointed out that instead of granting ad- interim protection, simple notice came to be issued, making it returnable on 5.3.2019, knowing fully well 90 days' period is to expire on 30.3.2019 and as a result of this, immediately on the next date, the petition was to be circulated since hoardings were sought Page 3 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER to be demolished upon lapse of the time. Mr. Shah has submitted that it is a settled position of law that first appeal is a substantive statutory right of a litigant and if during pendency of the said appeal, if interim protection is not granted, substantive appeal would become infructuous. Resultantly, according to Mr. Shah, the Court has rightly protected by granting ad-interim relief. Mr. Shah has further submitted that usually, appeal is to be filed along with a decree and there is no delay in preferring the said appeal as soon as the decree is made available and therefore, issuance of simple notice was likely to create an irreversible situation and hence, left with no other efficacious remedy, the petitioner had to approach this Court. Mr. Shah has then submitted two decisions, viz. in the case of Bhanubhai Mohanlal Bhatt and Another Vs. M/s,. Vinayak Developers, Bhuj, through its partner, reported in 1996(1) GLH (U.J.) 28 and in the case of Salim Ahmed Mathada Vs. Aminabai Hussein Bela reported in 1995(0) GLHEL-HC 210807, and by referring these two decisions, a request is made that till the hearing of the appeal before the Court below, interim protection be continued. Mr. Shah has pointed out that there is a strong prima facie case in favour of the petitioner and balance of convenience and irreparable loss aspects are also strongly in favour of the petitioner. Hence, if the interim protection is not continued, then entire appeal would automatically fail and would create an irreversible situation. Resultantly, by fixing the main appeal or bi-parte interim relief application, within the time bound schedule, the present order which has been passed granting protection be continued in the interest of justice.
5. To counter these submissions, learned senior advocate Mr. Anshin H. Desai appearing with learned advocate Shrineel M. Shah has vehemently opposed the petition and has agitated that there is a gross abuse of the process committed by the petitioner and the Hon'ble Court is completely misled while approaching urgently for Page 4 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER seeking interim protection. It has been submitted by learned senior advocate Mr. Desai that there an amendment in the Code of Civil Procedure under Order XLI prior to substitution of Order XLI Rule-1. Of-course, memorandum of appeal must be accompanied by a copy of the decree. Whereas, after Amendment Act of 1999, with effect from 1.7.2002, it has been provided that memorandum of appeal shall be accompanied by a copy of the judgment and copy of the judgment was very much available to the petitioner and therefore, it has been ill-founded in the mouth of the petitioner to indicate that since the decree was not available in time, the appeal could not be filed. It has further been submitted that here is a case in which at the last movement, without allowing the Court to go through the papers, an order is obtained by giving mis-impression on the issue of urgency. On the contrary, there is no whisper in the petition about the delay which has occasioned from 31.12.2018 to 1.3.2019, i.e. the day on which the certified copy was obtained, and therefore, since the petitioner has set down on his own urgent situation, he should think himself that law of equity demands that a person who is seeking protection must come with clean hands as the issue of interim relief is governed by principle of equity. Here is a case in which there is a clear prima facie intent on the part of the petitioner to approach this Court. In fact, the petitioner has not been able to obtain orders from the Court below and as such, has immediately rushed down to this Court by way of the present petition. This conduct on the part of the petitioner may not be allowed to be encashed any further. Mr. Desai has further submitted that there is a misnomer on the part of the petitioner that appeal to be filed within a period of 90 days but the same is to be filed within a period of 30 days and therefore, by giving wrong projection, the interim protection is obtained. It is very surprising that despite knowing fully well, a fake urgency is created by giving mis-impression to the Court. Usual course which ought to have been adopted by the petitioner is just to approach the Court concerned with an Page 5 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER application for seeking interim relief even during the pendency of the main interim relief issue. By pointing out to the averments contained in the affidavit-in-reply, which has been filed, a clear assertion is made that serious attempt is made to mislead this Court and thereafter it has been pointed out that a further mis-impression which has been given is that after lapse of 90 days, demolition/ removal will take place at the earliest. In fact, the operative part of the order is clearly indicating that after the lapse of 90 days, if the present petitioner is not removing the hoardings from the site, then as per the direction, the plaintiff has to approach the Corporation and then, in turn, the respondent Corporation will take initiative to remove the hoardings and therefore, there was no real urgency of that nature which would permit the petitioner to rush down to this Court with immediate effect. Hence, the very conduct on the part of the petitioner is just which would oust the petitioner from the equitable relief. So far as the merit is concerned, Mr. Desai has not much drawn the attention, particularly when the merit is not to be examined at this stage since the issue of urgent protection was to be considered, however has clearly submitted that there is no prima facie case in favour of the petitioner which would permit the petitioner to seek an interim protection. Mr. Desai has taken the Court to some of the assertions made in the affidavit-in-reply and thereby has requested the Court not to extend the interim protection any further. However, for expeditious hearing of the main appeal before the Court concerned, if appropriate direction is given, there may not be any resistance to learned counsel on behalf of the respondents. It has been submitted that these hoardings are endangering not only the safety of the people residing in the surrounding areas but also endangering the property of the original plaintiff as well. Hence, Mr. Desai requested the Court not to allow the interim relief any further and it has been submitted that while obtaining the interim order, certain material has not been properly projected and when the reply came to be filed, ground reality has Page 6 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER been urged, which conduct itself deserves to be deprecated. No other submissions have been made.
6. Having heard learned advocates appearing for the parties and having gone through the material on record, few circumstances are not possible to be ignored by this Court while arriving at just decision in the present proceedings.
(1) First of all, a perusal of the original judgment and order dated 31.12.2018 is indicating that while partially allowing the suit of the plaintiff, defendant No.3, who is the present petitioner, is directed to remove the hoardings within a period of 90 days and the said period of 90 days is to elapse on 30.3.2019. It has further been ordered that if the petitioner, being defendant No.3, is not removing the hoardings, then steps were directed to be taken by the Municipal Corporation to remove the same. So, there was a clear mandate upon the petitioner by the Court to remove the hoardings within a period of 30 days from the date of the order. Secondly, it appears from the record that there is a clear assertion that as soon as the petitioner came to know about the fact, immediately applied for a certified copy and that knowledge appears to have been derived from the communication through the lawyer. It is also asserted, which appears to be not in dispute, that as on 1.3.2019, the decree was not drawn and it is drawn only on 27.3.2019, which came to be received on 28.3.2019.
(2) It is also appearing from the record that immediately upon receipt of the decree on 28.3,2019, regular appeal came to be filed before the competent Court along with an injunction application and it is also reflecting that the Court upon the application for injunction issued a simple notice made it returnable on 5.4.2019. Hence, the returnable date without any protection was after expiration of the period of 90 days, though it must have been pointed out to the Court.
Page 7 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER(3) It also appears that since simple notice was issued without any protection, with immediate effect, writ petition came to be affirmed on 29.3.2019 and the same was circulated since 30.3.2019 and 31.3.2019 being Saturday Sunday, and this probably must be to avoid consequences which may fall back upon the petitioner either in the firm of removal of the hoardings or in the form of committing breach of the direction and as such, based upon such situation, being projected, the protection came to be granted. It further appears from the record that first appeal is a valuable vested right of a litigant and as such, in view of the settled position of law, breathing protection deserves to be granted so as to see that the appeal may not become infructuous nor it may result in an irreversible situation. It further appears from the record that detailed order is passed but statutory appeal deserves to be adjudicated upon and as such, the petitioner may not be non-suited or the appeal may not remain as it is, and as such, since it was a serious apprehension of removal of the hoardings, during pendency of the appeal, the protection deserves to be continued, which was being not disturbed till final order, i.e. upto December 2018. From the pleadings, it appears that the original plaintiff somehow wants to remove the hoardings projecting multiple reasons but then first appeal being legitimate right of a litigant may not be allowed to be thwarted on account of non-protection. In fact, since it is a settled position of law that merit at length cannot be examined at the stage of interim relief, considering the aforesaid peculiar set of circumstance, the Court is of the opinion that till Exh.5 application can be decided bi-parte, the status-quo deserves to be maintained.
7. In fact, it is a settled position of law that during the litigation process, normally, status-quo deserves to be continued unless in exceptional circumstances and this Court is not finding anything extraordinary which may permit to disturb the status-quo, meaning thereby the position prevailing during the litigation process. This has Page 8 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER been propounded in the decision in the case of Maharwal Khevaji Trust (Regd.) Faridkot Vs. Baldev Dass reported in AIR 2005 SC 104 and another decisions which are cited by learned counsel appearing for the petitioner. This position of maintaining injunction during pendency of appeal is well propounded by the two decisions, referred to above, and the relevant observations contained in the said decisions, since considered, the Court deems it proper to reproduce the same hereinafter.
(1) In the case of of Salim Ahmed Mathada (supra), this Court has held and observed in para 3 as under:-
3. As is pointed out by this Court in large number of decisions passed by this Extra Assistant Judge, Kutch-Bhuj,he has adopted unusual practice of admitting the Miscellaneous Civil Appeals against the order of injunction and has also adopted the practice of rejecting the application for stay at Exh.5 and thereby rendering Miscellaneous Civil Appeal meaningless. I have also adversely commented upon this practice and in an order dictated in Civil Revision Application No.1919 of 1995, on 10th October, 1995, I have stated the reason as to why the Miscellaneous Civil Appeal which is an appeal from order under the provisions of Order 43(1)(r) of the Civil Procedure Code should not be rendered meaningless by adopting this procedure. If the learned Judge feels that the case is one where the interim relief is not required to be granted, it is always open to set down entire appeal for hearing and to decide the same on merits. It may be that he may advance vary reasons which he has advanced now for the purpose of rejecting the application Exh.5. But, by passing such an order which is challenged before this Court, he has rendered the Miscellaneous Civil Appeal meaningless and, therefore, on this count alone, this Civil Revision Application is required to be allowed and the judgment and order of the learned Extra Assistant Judge Exh.5 in Civil Misc. Appeal No.153/95 is required to be quashed and set aside the the matter is remanded back to him for deciding the Miscellaneous Civil Appeal after hearing the parties in accordance with law latest by 30th November, 1995. Till then, the ship in question shall not be taken out of the territorial water of Mandavi Port. Rule is made absolute to the aforesaid extent with no order as to costs. Writ of this order be sent to the Extra Assistant Judge, Kutch- Bhuj forthwith.
quote (2) In the case of of Bhanubhai Mohanlal Bhatt (supra), this Court has held and observed in para 3 as under:-
Page 9 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER3. The grievance made before this Court in number or order passed below Exh.5 in M.C.A. by Extra Assistant Judge, Mr. Kirtidev R. Dave, is that while he admits CMA while passing order on Exh.5 in appeal by dismissing such application he virtually decides the appeal. The hearing of appeal thereafter become a more formality and it must meet one fate only and i.e. of dismissal. It becomes fait accomplice. In my sitting throughout this session I have come across 5th such order of this very learned Judge which has been rendered the CMA absolute meaningless by separately deciding Exh.5 and refusing interim relief. This is one of such orders. This Court has time and again pointed out that if the appellate court while deciding AO under Order 43 and while hearing Exh.5 application finds that there is no case made out for grant of interim relief and or maintenance of status quo, then it must immediately set down the appeal for hearing and must decide the appeal along with application. The very ground which convinced him for rejecting application would be the ground for rejecting and/or dismissing the appeal. This Court has failed to understand this nature of exercise of power by the Extra Assistant Judge who rejects Exh.5 application in CMA while admitting the appeal to be decide in future virtually he thereby renders the appeal meaningless. It is under these circumstances only, without expressing any opinion on merits, the order of the Ld. Extra Assistant Judge, dated 22.9.95 is required to be quashed and is hereby quashed with direction to the parties to maintain status quo till 30th November, 1995 and further directing the Extra Assistant Judge to decide the CMA No.162/95 on merits after hearing both the parties. Rule is made absolute to the aforesaid extent. No costs. The Registrar is directed to send down copy of this judgment to the Extra Assistant Judge, Kutch- Bhuj namely Mr. Kirtidev R. Dave with further direction to him to scrupulously comply with the orders of the court and to follow the same in future while deciding CMAs.
8. Yet, another decision, which is being brought to the notice of the Court in the case of B. Muthukrishnan (Dead) By Legal Representatives Vs. S.T. Reddiar Educational and Charitable Trust and others reported in (2018)4 SCC 298, has also indicated the proposition that when the main appeal is pending, it should be expeditiously disposed of on merit. Hence, the Apex Court has not disturbed the interim orders which are assailed. Para 5 which contains such indication, is reproduced hereinafter:-
5. In a situation where the impugned orders are interim in nature and when the first appeal in which such impugned Page 10 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER orders were passed is still pending for its final disposal in the High Court, it would be in the interest of all the parties to the appeal that the appeal itself be disposed of finally on merits.
So far as the legality of the impugned orders is concerned, suffice it to say, it being interim in nature, we do not consider it proper to interfere in such orders.
9. In view of the aforesaid position, which has been prevailing on record, this Court is of the opinion that since pretty long time and during pendency of the said proceedings, the hoardings have not been removed, the same may not be allowed to be removed at least during the decision of Exh.5 application, which has been preferred during pendency of the main appeal.
10. At this juncture, the contention which has been raised by learned counsel for the original plaintiff that pre-amendment provision of Order XLI was compulsorily requiring a decree along with the memorandum of appeal but later on the same has been amended and the memorandum shall be accompanied by mere copy of the judgment. But, here, the decree was undisputedly drawn only on 27.3.2019 and the appeal has been filed with immediate effect. So much so that the certified copy has also been applied on 1.3.2019 and as such, prima facie, it appears that there is no dilatory tactic adopted by the petitioner to drag on the issue. It appears from the overall circumstances that since the returnable date of injunction application is given after lapse of 90 days' period, i.e. on 5.4.2019, the petitioner has rushed down to this Court with immediate protection and consequence thereof might have been apprehended. So, in a situation like this, right from 2011 to 31.12.2018, when the hoardings have been continued rightly or wrongly, which is not to be examined at this stage, the said position of the hoardings may not be required to be disturbed at least till the injunction application gets decided by the Court in an appeal proceedings. The Supreme Court, as referred to above, has in terms stated in para 10 that allowing changes of status-quo during pendency of litigation is not justified except in exceptional Page 11 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER circumstances and the ground that legal proceedings are likely to take long time is not an exceptional circumstance to allow any change. Hence, since the position is prevailing right from 2011 till 2018, the same, in considered opinion of this Court, may not be allowed to be altered. The relevant observations contained in para 10 of the aforesaid decision are reproduced hereinafter:-
10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.
In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.
11. Since the petitioner as well as the respondents have jointly submitted that hearing of the injunction application filed in the regular first appeal before the Court concerned is fixed on 21.6.2019, both, the petitioner as well as the respondents, are directed to cooperate with the hearing and shall not ask for adjournment except in exceptional genuine circumstance and shall see to it that hearing can take place on that very day. Simultaneously, the petitioner is also directed to serve the process/ summons of the injunction application on or before 19.6.2019 so as to see that the contesting respondents can proceed ahead with the Page 12 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019 C/SCA/6408/2019 ORDER hearing.
11.1. Learned Judge is requested to see that such bi-parte hearing shall be taken up as expeditiously as possible and the application for injunction shall be decided within a period of THREE WEEKS from the date of approach by the petitioner.
11.2. Though for the purpose of passing the present order, certain observations have been made but the same may not be influenced in ultimate decision making process by learned District Judge while deciding the injunction application.
11.3. The Court is not expressing any opinion on merit or demerit of the stand of both the parties to the proceedings and it is independently open for learned District Judge to deal with and decide the application for injunction on its own merits.
11.4. Both the parties are directed to co-operate with the hearing of the said application for injunction during pendency of the main first appeal and shall not take unnecessary adjournments.
11.5. During the said decision making process of injunction application bi-parte, the protection, which has been given by this Court vide order dated 29.3.2019, shall continue to operate till decision on the injunction application by learned District Judge.
12. With above directions and observations, the present petition stands disposed of with no order as to costs.
(A.J. SHASTRI, J) OMKAR Page 13 of 13 Downloaded on : Wed Jul 03 11:04:29 IST 2019